Downloading Competition Law from a Regional Trade Agreement (RTA) - A Strategy to Introduce Competition Law in Bolivia and Ecuador

Abstract

Bolivia and Ecuador have proved resistant to the adoption of competition laws. Despite several drafts having been discussed in the last few years, to date no competition rules have been enacted in these countries. Notwithstanding, both are members of the Andean Community (CAN) which in 2005 adopted new rules aimed at fighting anticompetitive practices at supranational level. These new rules mirror Articles 81 and 82 of the EC Treaty and provide Andean institutions with investigation and sanction powers; however, no merger review is provided. The CAN competition rules foresee the possibility that Ecuador and Bolivia use them in their domestic settings as if they were national rules until national competition laws are adopted (i.e. they can download them into their national legal system). Although this provision is well-intended and it may help overcome the impasse in the processes leading to the adoption of national competition laws in both countries, this article will argue that it may have undesirable effects. Not only may it undermine the competition rules contained in the Regional Trade Agreement, but may also worsen the prospect of domestic competition rules being adopted. Besides, the transfer of Andean rules to the national system requires considerable effort to adapt them to a national institutional background, and even in that case some conflicts and interferences may arise afterwards. Notwithstanding all these difficulties and problems, downloading CAN competition rules may be a good alternative in preparing the Bolivian and Ecuadorian legal systems for the adoption of their own domestic competition rules.